Date: Tue, 21 Nov 2006 13:50:57 -0500
From: "REPROHEALTHLAW-L : Reproductive and Sexual Health Law Programme"
Subject: [RHLAW] Roma sterilization case in Hungary: CEDAW
ROMA STERILIZATION CASE IN HUNGARY: CEDAW
Many thanks to Simone Cusack, an LL.M. student at the Faculty of Law, University of Toronto, for writing the following summary
Ms. Andrea Szijjarto v Hungary, CEDAW, Communication No. 4/2004, UN Doc. CEDAW/C/36/D/4/2004 (29 August 2006)
Summary
On 29 August 2006, the Committee on the Elimination of Discrimination against Women (Committee)issued a view finding Hungary in violation of Articles 10(h), 12 and 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination against Women (Convention), for its failure to protect the reproductive rights of Ms. Andrea Szijjarto (A.S.).
Factual background
The facts leading to the communication arose when A.S., a Hungarian woman of Roma origin, underwent surgery at a public hospital for a caesarean section in connection with a miscarriage. Prior to the surgery, but whilst on the operating table, A.S. was asked to sign a form consenting to the procedure, as well as a “barely legible” hand-written note requesting sterilization. The Latin term for sterilization, a term unknown to A.S., was allegedly used in the hand-written note. Medical records also showed that, at the time consent was sought from the author, she was reportedly in “poor health.” According to A.S., it was not until after the sterilization procedure was performed that she learned the meaning of the word “sterilization.”
A.S. subsequently brought a complaint before the Committee alleging a violation of Articles 10(h), 12 and 16(1)(e) of the Convention. Ms. A.S. submitted that the sterilization had been performed without her full and informed consent and that her inability to give informed consent constituted a violation of her rights to appropriate health-care services and to decide freely and responsibly on the number and spacing of her children. In making her complaint, Ms. A.S. sought a view from the Committee that Hungary had violated her rights under the Convention and requested that the Committee provide her with just compensation.
Admissibility
In its submissions on admissibility, Hungary submitted that: A.S. had not exhausted domestic remedies, and that the Committee was not competent ratione temporis to consider the communication. In respect of the timing of the communication, Hungary argued that the reported violation took place prior to the CEDAW Protocol’s entry into force for the State Party and that the effects of the violation did not continue after this time. In this connection, it argued that the author had not sustained a permanent disability as the effects of the sterilization were reversible. With respect to the communication’s merits, Hungary submitted that A.S. had been provided with all of the necessary information prior to her surgery and that, in any event, given that the author already had three children, she should have been familiar with that information.
In declaring the communication admissible, the Committee dismissed the suggestion that the effects of the violations for A.S. did not continue past the entry into force date of the Optional Protocol for Hungary. It noted [at 10.4] that “[i]t ha[d] been put forward convincingly that sterilization should be viewed as permanent, in particular: sterilization is intended to be irreversible; the success rate of surgery to reverse sterilization is low and depends on many factors…; there are risks associated with reversal surgery; and an increased likelihood of ectopic pregnancy following such surgery.”
Merits
After considering the information before it, the Committee concluded that the failure of the Hungarian Government to protect A.S.’s reproductive health amounted to a violation of A.S.’s rights under Articles 10(h), 12, and 16(1)(e) of the Convention. Commenting on Hungary’s violations of Articles 10(h) and 12, the Committee concluded that Hungary, through the state hospital authorities, had failed to provide A.S. with appropriate information and advice on family planning, and ensure that A.S. had given her fully informed consent to the operation. Recalling its General Recommendation No. 19, the Committee also noted [at 11.4] that “[C]ompulsory sterilization … adversely affects women’s physical and mental health, and infringes the right of women to decide on the number and spacing of their children.” It, therefore, concluded that Hungary’s failure to protect A.S.’s reproductive rights also amounted to a violation of Article 16(1)(e).
Recommendations
The Committee subsequently recommended that Hungary provide A.S. with appropriate compensation. More generally, the Committee recommended that Hungary: “take further measures to ensure that the relevant provisions of the Convention and the pertinent paragraphs of the Committee’s general recommendations Nos. 19, 21 and 24…are known and adhered to by” all relevant health professionals; review domestic law on informed consent in sterilization cases and ensure conformity with international standards; and monitor health centers performing sterilizations so as to ensure fully informed consent is being given, with sanctions in place for breaches.
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